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2014 DIGILAW 451 (CAL)

Bandana Dey v. State of West Bengal

2014-05-15

SAMBUDDHA CHAKRABARTI

body2014
JUDGMENT Sambuddha Chakrabarti, J. The facts of the present case raise several issues of not only legal but also social import. The sequence of events involved in the case not only touch on the dreary legalism but the problem arising therefrom should be answered keeping a broader aspect in mind. The petitioner is the widow of a former bank employee who died on July 24, 2006 before he attained the age of superannuation. When he was in service of the concerned bank a disciplinary proceeding was initiated against him on charges of certain financial irregularities. He was found guilty and an order of removal was passed against him. An appeal taken against the said order of the disciplinary authority was ultimately rejected. Simultaneously with the departmental proceeding the bank authorities had lodged a complaint with the police and a criminal case was started against the said employee. Ultimately the said employee was found not guilty and was acquitted. After acquittal in the criminal case the petitioner’s husband had filed a representation before the bank authorities for his reinstatement in service. Since the petitioner’s husband died in the meantime his widow, i.e., the present petitioner had filed a writ petition before this court which was disposed of by granting liberty to the petitioner to submit a representation to the bank ventilating all her grievances including the appointment of her son on compassionate ground. The petitioner accordingly submitted the representation but the same was turned down by the bank authorities which has been assailed by the petitioner in this writ petition. Mr. Lakshi Kumar Gupta, the learned senior counsel for the petitioner, submitted that since the employee was acquitted of the charges after a full-fledged trial the order of removal passed by the bank authorities based on selfsame charges cannot stand when the evidence in both the proceedings was the same. Mr. Gupta submitted that at the disciplinary proceeding the employer had produced only one witness but at the trial the prosecution produced as many as 15 witnesses. According to him when a court of law had acquitted an accused the same must prevail over the finding of a disciplinary authority. In support of his contention Mr. Gupta has referred to the cases of Capt. According to him when a court of law had acquitted an accused the same must prevail over the finding of a disciplinary authority. In support of his contention Mr. Gupta has referred to the cases of Capt. M. Paul Anthony –Vs.- Bharat Coal Mines Limited and Another, reported in (1999) 3 SCC 679 and G. M. Tank –Vs.- State of Gujrat and Others, reported in (2006) 5 SCC 446 for a proposition that where the facts and evidence in both the proceedings were identical the concept of different standards of proof required in a criminal case as well as in departmental proceeding is not applicable. In Capt. Paul Anthony (Supra) the Supreme Court held that when the facts and evidence in both the proceedings, viz., the departmental proceedings and the criminal case, were same without there being any iota of difference the distinction which is usually drawn between a departmental proceeding and a criminal case on the basis of approach and burden of proof would not be applicable to that case. Such was also the view of the Supreme Court in the case of G. M. Tank (Supra). It has been further held that when there was an honourable acquittal of an employee during the pendency of the proceedings challenging the dismissal the same requires to be taken note of and the decision in the case of Capt. Paul Anthony (Supra) would apply. Mr. Gupta has further relied on the case of Divisional Controller, Karnataka State Road Transport Corporation –Vs.- M. G. Vittal Rao, reported in (2012) 1 SCC 442 . Although that judgement is an authority for a different ratio Mr. Gupta relied on the observation made by the Supreme Court that “facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry.” Relying on this observation Mr. Gupta submitted that in the present case as well the alleged facts and the charges in the criminal case were identical. The nature, substance, quantity and quality of evidence were far more elaborate in the criminal court than that led at the departmental enquiry. Therefore, the principle laid down in the case of Capt. Paul Anthony (Supra) and G. M. Tank (Supra) will be applicable and the removal order should be set aside. The nature, substance, quantity and quality of evidence were far more elaborate in the criminal court than that led at the departmental enquiry. Therefore, the principle laid down in the case of Capt. Paul Anthony (Supra) and G. M. Tank (Supra) will be applicable and the removal order should be set aside. Since the petitioner’s husband cannot be reinstated as he is already dead, the petitioner prays, the Bank may be directed to pay all financial benefits to the petitioner till the date of his death treating him in service till that day because had the employee not died he would have been in service till April 30, 2015. With regard to the prayer of the petitioner for appointment of her son on compassionate ground Mr. Gupta submitted that in the event this submission is accepted the case for compassionate appointment of the son is required to be decided on the basis that the employee did not commit any misconduct. The respondent bank has filed an affidavit and has contested the writ petition. One of the major submissions of Mr. Mantha, the learned advocate for the bank, is that after about four years of acquittal in the criminal proceeding the widow of the deceased filed the first writ petition praying for the quashing of the removal order in the departmental enquiry. The first writ petition was disposed of with a direction to make a formal representation to the bank ventilating all grievances and the bank was directed to consider such representation in accordance with law. The petitioner received all the terminal dues of her deceased husband including his contribution to Provident Fund on May 13, 2008. The instant petition had been filed challenging the order dated May 9, 2008 whereby the representation of the petitioner for compassionate employment of her son was rejected. According to Mr. Mantha the liberty given by a learned single judge of this court to make a representation raising all points has to be understood in the context of the issues raised in submissions before the learned judge, i.e., the terminal dues payable to the deceased and the compassionate appointment for her son. All other points in the writ petition must have been abandoned by the petitioner and were rejected by the court. All other points including the effect of acquittal in the criminal court are, therefore, hit by the principles analogous to res judicata. All other points in the writ petition must have been abandoned by the petitioner and were rejected by the court. All other points including the effect of acquittal in the criminal court are, therefore, hit by the principles analogous to res judicata. According to Mr. Mantha the charge in the criminal proceeding was under Section 477A and 409 of the IPC and as such they were different from those made at the departmental enquiry. The order of acquittal cannot not be said to have any effect on the result of the enquiry. The degree of proof in a criminal proceeding is much higher and stricter. Criminal trial follows strict rules of evidence. A departmental proceeding is guided by the principles of preponderance of probabilities. Mr. Mantha has taken a further point that the prosecution was not in the hand of the bank. The acts and omissions of the prosecution cannot dilute, therefore, the result of the enquiry. From the fact that the criminal case was allowed to continue during the pendency of the departmental proceeding and the petitioner not having ever prayed for stay of the departmental proceeding it follows that the deceased husband of the petitioner did not think that the result of the criminal proceeding would have any bearing on the departmental enquiry. The petitioner’s husband was removed from service in 1992 and he died in the year 2006. If the whole purpose of providing employment on compassionate ground is to provide urgent financial help to a needy family such need must be deemed to have been significantly satisfied after so many years. Thus the moot question that crops up for consideration is whether the petitioner is entitled to automatic reinstatement in service after the acquittal in the criminal case. Mr. Gupta, the learned Senior Counsel for the petitioner has heavily relied upon the case of Capt. M. Paul Anthony (Supra) and submitted that where the charges in the departmental proceeding as well as in the criminal proceeding were same and based on same and identical facts and where the witnesses examined were the same in both the proceedings it would be unjust, unfair and rather oppressive to allow the ex party departmental proceeding to stand. The fact and evidence in departmental as well as in criminal proceeding were the same without there being any iota of difference. The fact and evidence in departmental as well as in criminal proceeding were the same without there being any iota of difference. The distinction which is usually drawn between departmental and criminal proceedings on the basis of approach and burden of proof would not be acceptable to the instant case. In the case of G. M. Tank (Supra) the Supreme Court observed that there is no evidence against the appellant to hold him guilty of the charges brought against him. The same set of witnesses were examined both at the departmental proceeding as well as in the criminal case. The judicial pronouncement was made after regular trial and the accused was acquitted. The Supreme Court held that under these circumstances it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. It was further held that the distinction which is usually drawn between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable to the instant case. Following the case of Capt. M. Paul Anthony (Supra) it was held that when there was an honourable acquittal of the employee during the pendency of the proceedings while challenging the dismissal the same is required to be taken note of. In the case of State Bank of Bikaner & Jaipur –Vs.- Nemi Chand Nalwaya, reported in 2011(4) SCC 584 the Supreme Court had held that the subsequent acquittal by a criminal court will not in any way render a completed disciplinary proceeding invalid nor affect validity of finding of guilt or consequential punishment. The standard of proof required in a criminal proceeding being different from the standard of proof required in a departmental enquiry the same charges and evidence may lead to different results in two proceedings, i.e., finding of guilt in departmental proceeding and an acquittal by giving the benefit of doubt in criminal proceeding. When the departmental proceedings are more proximate to the incident compared to the criminal proceedings the findings of the criminal court will have no effect on a previously concluded departmental proceeding. Mr. Gupta submitted that although it might appear at the first reading of Nemi Chand Nalwaya (Supra) that the court was laying down a difference from either in Capt. When the departmental proceedings are more proximate to the incident compared to the criminal proceedings the findings of the criminal court will have no effect on a previously concluded departmental proceeding. Mr. Gupta submitted that although it might appear at the first reading of Nemi Chand Nalwaya (Supra) that the court was laying down a difference from either in Capt. Paul Anthony (Supra) or G. M. Tank (Supra) such a reading of that judgment will be erroneous and the difference in the factual situations has to be noted. According to Mr. Gupta what is worth noting is that in the latter judgment the decision in the departmental proceeding became final by reason of the same not being challenged in the court of law. In this situation the judgment holds against the result of the criminal case having effect on the disciplinary proceeding. In the present case the order in the disciplinary proceeding had not reached finality as the same is the subject matter of challenge in the previous as well in the present writ petition. Even if one accepts the submissions of Mr. Gupta in its entirety there is still a very major grey area which has not been touched in the present case. It is one thing to say that the charge in the criminal case as well as in the departmental proceeding was one and the same. But in reality there is always a subtle difference between the two. This results from the rules of the bank itself. Mr. Mantha has referred to the UCO Bank Officers’ and Employees’ (Conduct, Discipline and Appeal) Regulations. Clause 3 of the said Regulations says that every officer shall at all times take all possible steps to ensure and protect the interest of the bank and discharge the duties with utmost integrity, honesty, devotion, diligence and do nothing which is unbecoming of a bank officer. According to him the criminal case was very different from the one that the writ petitioner’s husband faced in the departmental proceeding. In the more recent case of Avinash Sadashiv Bhosle (D) The LRS –Vs.- Union of India and Others, reported in 2013(1) LLJ 1 dated 25th September, 2012 which is subsequent to the one relied on by Mr. Gupta, the Supreme had occasion to consider an identical issue. In the more recent case of Avinash Sadashiv Bhosle (D) The LRS –Vs.- Union of India and Others, reported in 2013(1) LLJ 1 dated 25th September, 2012 which is subsequent to the one relied on by Mr. Gupta, the Supreme had occasion to consider an identical issue. After considering a large number of cases the Supreme Court held that it must be emphasized that bank officials act as trustees of funds deposited by the public with the bank. They have an obligation to earn the trust and confidence of not only the account holders but also the general public. The standard of integrity required of the bank officials is like the Caesur’s wife. They must be above suspicion. It was held that the conduct of the criminal trial was in the hands of the prosecuting agency. Having registered the First Information Report the bank had little or no role to play apart from rendering assistance to the prosecuting agency. Based on this the respondents have argued that once the petitioner is acquitted in a criminal trial he cannot have a right to be reinstated if he is dismissed in departmental proceeding. Mr. Mantha has also argued that the charge on which the husband of the petitioner was departmentally proceeded was not exactly the same as that which he had faced in criminal trial. In the departmental proceeding the primary charge was that by misusing his position the charged employee had misappropriated some money and made wrongful gains. He thus totally betrayed the confidence reposed in him by the bank and his conduct was unbecoming of an officer of the bank. It was also mentioned that by the acts alleged against him he failed to discharge his duties with utmost integrity and honesty which was violative of Regulation 3(1) of the relevant regulations applicable to the charged employee. The disciplinary authority while accepting the finding of the enquiry officer had very specifically observed to some very major factors that distinguish a departmental proceeding from a regular trial. First, non-application of the strict rule of evidence in domestic enquiry. Secondly, the standard of proof required in a domestic enquiry is that of preponderance of probability and not the proof beyond a reasonable doubt which is the requirement for a regular criminal trial. That apart, Mr. First, non-application of the strict rule of evidence in domestic enquiry. Secondly, the standard of proof required in a domestic enquiry is that of preponderance of probability and not the proof beyond a reasonable doubt which is the requirement for a regular criminal trial. That apart, Mr. Mantha submitted, the issue must have to be judged from the aspect of violation of Regulation 3 of the relevant Regulations which were the charges against the concerned employee. When the criminal court acquitted the accused it had approached the case from the requirement of the satisfaction of the elements contained in the specific provisions of law of the Indian Penal Code. It appeared from the evidence of the prosecution witnesses that they had failed to establish the ingredients of Section 477A/ 409 of the Indian Penal Code. Needless to say that they were not the charges in a departmental proceeding. Another very important factor that weighed with the Trial court was want of proper prior sanction for taking cognizance of the case. Mr. Mantha has referred to a recent judgment of the Supreme Court in the case of Commissioner of Police, New Delhi and Another –Vs.- Meher Singh, reported in (2013) 7 SCC 685 , where the Supreme Court had observed that quite often criminal cases ended in acquittal because witnesses turned hostile. An acquittal based on benefit of doubt could not stand at par with clean acquittal on merit after a full-fledged trial. The expressions ‘honourable acquittal’ or ‘fully exonerated’ are unknown to Criminal Procedure Code or the Penal Code. The purpose of departmental proceedings is to keep persons who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude out of government service, if found necessary, because they pollute their department. Based on this Mr. Mantha submitted that if one reads in between the lines the judgement supports his contention that in terms of Regulation 3 of the concerned Regulations a man of doubtful integrity is not to be seen in the employment of the bank which calls for an integrity of the highest order. As such an acquittal does not ipso facto automatically entitle him to reinstatement if he is otherwise found liable to be dismissed from service. As such an acquittal does not ipso facto automatically entitle him to reinstatement if he is otherwise found liable to be dismissed from service. In view of what has been discussed above on the difference of charges it may be difficult for the petitioner to sustain that the acquittal in the criminal case cast an automatic duty upon the respondents to reinstate the petitioner. In fact, the law also does not say so without giving a substantial area of leeway to the employer to decide the justifiability of reinstating an employee on the basis of the verdict made in the criminal court. The case of G. M. Tank (Supra) does not help the petitioner inasmuch as I have already found that there is considerable difference between the charge-sheet leading to the departmental proceeding and the First Information Report. The departmental proceeding proceeded on the basis that the alleged act of the petitioner’s husband was prejudicial to the interest of the bank which was not the subject tmatter of the criminal charge. Thus I find sufficient substance in the submission of the respondents. Over and above that the petitioner has yet another hurdle to overcome. It may not be lost sight of that the relief prayed for by the petitioner in the present writ petition is for a writ of Mandamus commanding the respondents to give appointment to the son of the petitioner on compassionate ground and to pay all the dues lying with the UCO Bank of her deceased husband by setting aside the letter of termination. The order of termination was never challenged by the petitioner’s husband during his life time. He had thereby accepted the termination and it was only after his death that his wife has started filing writ petitions seeking compassionate appointment on the ground of premature death of her husband treating him to be in service on the date of his death. Fact remains, however, that the petitioner was terminated long before he had died. Now such a long time after his death the bank cannot be directed to set aside the order of termination and to reinstate him retrospectively and notionally and then to treat him as died-inharness and to give the benefits which are in vogue and to confer the benefits of death-in-harness. That will be too much for the petitioner to ask for. That will be too much for the petitioner to ask for. I can well appreciate the reservations of the respondents on this ground. I find no merit in the writ petition whatsoever and the same is dismissed. In the facts and circumstances of the case there shall be no order as to costs.